Rapanos v. United States, 547U.S.715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court heard the case on February 21, 2006 and issued a decision on June 19, 2006. While five justices agreed to void rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos, the court was split over further details, with the four more conservative justices arguing in favor of a more restrictive reading of the term "navigable waters" than the four more liberal justices. Justice Kennedy did not fully join either position.[1] The case was remanded to the lower court. Ultimately, Rapanos agreed to a nearly $1,000,000 settlement with the EPA while not admitting to any wrongdoing.

The case involves developers John A. Rapanos (Midland, Michigan) and June Carabell whose separate projects were stopped because of the environmental regulations that make up the Clean Water Act.

In the late 1980s, Rapanos filled 22 acres (89,000 m2) of wetland that he owned with sand in preparation for the construction of a mall without filing for a permit.[2] He argued that the land was not a wetland and that he was not breaking the law, but his own consultant and state employees disagreed. Rapanos claimed that his land was up to 20 miles (32 km) from any navigable waterways.[3] However, the term "navigable waterway" has been broadly interpreted by the U.S. Environmental Protection Agency to include areas connected to or linked to waters via tributaries or other similar means. Rapanos was convicted of two felonies for filling wetlands in violation of law in 1995. The conviction was overturned and restored several times but, in the end, he was forced to serve three years of probation and pay $5,000 in fines.[4] Eventually, Rapanos appealed the civil case against him, which included millions of dollars of fines, to the Supreme Court of the United States.[3]

Carabell, who was involved in the associated case Carabell v. United States Army Corps of Engineers, did seek a permit to build condominiums on 19 acres (77,000 m2) of wetlands, but the request was denied by the Army Corps of Engineers. Carabell took the issue to the courts, arguing that the federal government did not have jurisdiction. After losing in the Federal District Court and the Sixth Circuit Court of Appeals, Carabell appealed to the United States Supreme Court.[3]

The justices were unable to produce an Opinion of the Court. Four justices voted to affirm. Four justices voted to vacate, to strike down the Corps interpretation of the CWA, and to remand under a new “continuous surface water connection” standard. Justice Kennedy also voted to vacate and remand but under the different “significant nexus” standard. All told, the Court voted 4-1-4, with three justices making oral readings at the opinion announcement, and five printed opinions spanning over one-hundred pages. Both cases were remanded “for further proceedings.”

JusticeAntonin Scalia authored a plurality opinion, in which he was joined by Chief JusticeJohn Roberts, Justice Clarence Thomas, and Justice Samuel Alito. Justice Scalia began his analysis by arguing that the Corps “exercises the discretion of an enlightened despot” and quoted factors it used when choosing to exercise jurisdiction, such as “aesthetics” and “in general, the needs and welfare of the people”.[6] He then criticized the cost associated with exercising jurisdiction, noting that the average applicant spends 788 days and $271,596 on an application and that “for backfilling his own wet fields”, Rapanos faced 63 months in prison.[7] Justice Scalia argued the “immense expansion of federal regulation” over “swampy lands” would give the Corps jurisdiction over “half of Alaska and an area the size of California in the lower 48 States.”[8]

Justice Scalia then detailed the Clean Water Act’s history, from the litigation forcing the Corps to broaden its jurisdiction beyond traditional navigable waters, to its adoption of the Migratory Bird Rule after Riverside Bayview, to SWANCC's rejection of that rule and calls for new regulations. Justice Scalia then noted that the Corps has still not amended its published regulations and he emphasized a Government Accountability Office investigation finding disparate standards across different Corps district offices.[9] Justice Scalia ultimately concluded that Waters of the United States should only include relatively permanent, standing or continuously flowing bodies of water because, according to Justice Scalia, that was the definition of “the waters” in Webster’s Dictionary.[10] Justice Scalia also rejected Justice Anthony Kennedy's assertion that the same dictionary definition lists floods as an alternative usage because, according to Justice Scalia, it was “strange to suppose that Congress had waxed Shakespearean”. Therefore, Justice Scalia suggested the Corps regulations of intermittent streams were “useful oxymora”.

The plurality opinion stated that the Clean Water Act confers federal jurisdiction over non-navigable waters only if the waters exhibit a relatively permanent flow, such as a river, lake, or stream. In addition, a wetland only falls within the Corps' jurisdiction when there is a continuous surface water connection between it and a relatively permanent waterbody, such that it is difficult to determine where the waterbody ends and the wetland begins. In addition to his textualist arguments, Justice Scalia also argued that his conclusions conformed with basic principles of federalism. Quoting the CWA’s policy to “protect the primary responsibilities and rights of the States”, Justice Scalia argued the Corps’ inferred jurisdiction failed the clear statement rule. Furthermore, because the Corps’ interpretation “stretches the outer limits of Congress’s commerce power” Justice Scalia justified his selective interpretation under constitutional avoidance.[6] Justice Scalia spent the rest of his opinion attacking the other Justices' arguments. Justice John Paul Stevens wrote that the plurality opinion upset three decades of administrative and congressional practice, but Justice Scalia rejected this argument as “a curious appeal to entrenched Executive error”. Justice Scalia also characterized Justice Kennedy's significant nexus test as a “gimmick” Justice Kennedy employs to “devises his new statute all on his own” and his reasoning, Scalia taunts, is “turtles all the way down.”[8]

Chief Justice Roberts wrote separately to note that it was “unfortunate” the Court failed to reach a majority. Additionally, he criticized the Corps for refusing to publish guidance on the scope of its power even after being warned to do so in SWANCC.

Justice Kennedy wrote an opinion concurring with the judgment of the court.[fn 1] While he agreed the cases should be vacated and remanded, he believed that a wetland or non-navigable waterbody falls within the scope of the Clean Water Act’s jurisdiction if it bears a "significant nexus" to a traditional navigable waterway. Using some of the Court’s language in SWANCC, Justice Kennedy argued the CWA defines navigable waters as a water or wetland that possesses a significant nexus to waters that are navigable in fact.[13] He argued that a nexus exists where the wetland or waterbody, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.[14]

Justice Kennedy spent the rest of his concurring opinion explaining why the eight other justices were wrong. He characterized Justice Scalia’s opinion as “inconsistent with the Act’s text, structure, and purpose” and noted that what Justice Scalia called “wet fields” were, in fact, sensitive habitats that provide essential ecosystem services.[15] He also criticized Justice Scalia’s selective reliance on only part of the dictionary definition of “waters”; Justice Kennedy noted that even the Los Angeles River might fail Scalia’s test.[16] Justice Kennedy also attacked, “as an empirical matter”, Justice Scalia’s assertion that silt cannot wash downstream.[17] Likewise, Justice Kennedy criticized Justice Stevens' dissenting opinion, noting “while the plurality reads nonexistent requirements into the Act, the dissent reads a central requirement out”. Referring to the inconsistencies found by the GAO investigation, Justice Kennedy wrote he could not share Justice Stevens’ trust in the Corps’ reasonableness.[18]

Justice Stevens wrote a dissenting opinion, in which he was joined by Justice David Souter, Justice Ruth Bader Ginsburg, and Justice Stephen Breyer. Justice Stevens called the Corps’ asserted jurisdiction “a quintessential example of the Executive’s reasonable interpretation” and argued that Riverside Bayview already “squarely controls” the validity of the regulations. After reviewing in detail the criminal allegations against John Rapanos, Justice Stevens emphasized that the SWANCC Court only limited Corps jurisdiction over truly isolated waters, and that Congress deliberately acquiesced to Corps regulation when it appropriated funds for the National Wetlands Inventory.[19] Justice Stevens also criticized Justice Scalia’s “dramatic departure” from Riverside Bayview in a "creative opinion" that "is utterly unpersuasive." Justice Stevens derided Justice Scalia’s new limit on jurisdiction to relatively permanent bodies of water as an "arbitrary distinction". Additionally, Justice Stevens criticized Justice Scalia for "cit[ing] a dictionary for a proposition it does not contain". Rather, Justice Stevens argued that "common sense and common usage" treat intermittent streams as streams.[20] Furthermore, Justice Stevens concluded that "the very existence of words like 'alluvium' and 'silt' in our language" disproved Justice Scalia’s assertion that material does not normally wash downstream.[21]

Justice Stevens noted that he agreed with Justice Kennedy's description of the cases and Justice Kennedy’s critique of Justice Scalia's plurality opinion. However, Justice Stevens stated he was "skeptical" that there actually were any adjacent wetlands that would not meet Kennedy’s significant nexus test. Nevertheless, Justice Stevens clarified that because all four dissenters adopted the broadest jurisdictional test, they would also find Corps jurisdiction in any case that meets either Justice Scalia’s or Justice Kennedy’s test. As such, Justice Stevens assumed Justice Kennedy’s "approach will be controlling in most cases".[22]

Justice Breyer wrote a separate dissenting to note that he believed the Corps CWA authority extended to the very limits of the interstate commerce power. Because he believed agency expertise would produce better definitions than judicial review, he called on the Corps to “speedily” write new regulations.

Because no single Rapanos opinion garnered a majority of the justices’ votes, it is unclear which opinion sets forth the controlling test for wetlands jurisdiction. Chief Justice Roberts observed that the lower courts would likely look to Marks v. United States[23] to guide them in applying the competing Rapanos standards. Marks provides that, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”[24] Justice Stevens, writing the principal Rapanos dissent, suggested that lowers courts could use either the plurality’s or Justice Kennedy’s test, because both tests would command the support of at least five justices.”[25]

To date, seven federal appellate courts have been presented with the issue of which Rapanos jurisdictional test is controlling. The Fifth Circuit in United States v. Lucas[26] and the Sixth Circuit in United States v. Cundiff[27] ultimately avoided the question, because those courts determined that the evidence presented was adequate to support federal jurisdiction under either standard. The Seventh Circuit in United States v. Gerke,[28] the Ninth Circuit in Northern California River Watch v. City of Healdsburg,[29] and the Eleventh Circuit in United States v. Robison[30] held that Justice Kennedy’s opinion (the "significant nexus" test) is controlling. The First Circuit in United States v. Johnson[31] and the Eighth Circuit in United States v. Bailey[32] held that jurisdiction may be established under either Rapanos test. One district court has held that the Rapanos plurality opinion (the "continuous surface water connection" test) is controlling.[33]

As Chief Justice Roberts anticipated, the courts adopting the Kennedy standard have done so by invoking Marks. Under Marks, a split decision’s binding legal rule is found in the opinion taken by the concurring justices on the narrowest grounds, which has been interpreted as meaning the opinion that is the “logical subset” of the other opinions in the case.[34] As applied to Rapanos, Marks dictates that if either the plurality or the Kennedy test is a subset of the other, then that test is controlling. The appellate courts that have followed the Kennedy test have concluded that it is a logical subset of the Rapanos plurality test and therefore binding. The appellate courts that have adopted both Rapanos tests—the First and Eighth Circuits—have concluded that the Marks rule does not apply to Rapanos and that both tests are equally valid. The Supreme Court has denied petitions for writ of certiorari in six of the seven circuit court cases addressing the Rapanos split-decision question. (The Bailey appellant did not file a petition). It is therefore unlikely that the Supreme Court will clarify this question in the near future.

Citing the confusion created by Rapanos, on June 29, 2015 the Corps and EPA promulgated a new seventy-five page regulation attempting to clarify the scope of waters of the United States, to take effect on August 28.[35] Thirteen states sued, and on August 27 U.S. Chief District Judge Ralph R. Erickson issue an injunction blocking the regulation in those states.[36] In separate litigation, on October 9 a divided federal appeals court stayed the rule’s application nationwide.[37]

^In plurality opinions, a majority of Justices agree upon the proper disposition of the case, but “no single rationale explaining the result enjoys the assent of five justices.”[11] When analyzing a plurality opinion, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .”[12]

History of Rapanos and the related case, Carabell (A history, starting from the US Army Corps of Engineers permit application submitted by the Carabells and the enforcement action brought by the Environmental Protection Agency against Mr. Rapanos, through the various appeals leading to this US Supreme Court decision)

[1] The Supreme Court and the Clean Water Act: Five Essays on the Supreme Court's Clean Water Act jurisprudence as reflected in Rapanos v. United States, published in April 2007 by the Vermont Journal of Environmental Law and the Vermont Law School Land Use Institute